The apex court recently dismissed an appeal by the Botswana Public Employees Union (BOPEU), which was representing Onkgopotse Ntatane and others. In the matter, the union wanted to overturn a High Court decision to compel the employer to implement a directive to put in place and implement the Competence-Based Career Path (CBCP) they negotiated, concluded, and approved with the employer and the reference committee on July 2, 2023. BOPEU was aggrieved by the High Court’s decision to dismiss its application for an order of mandamus against the Directorate of Public Service Management (DPSM) to implement the CBCP scheme where no opposing papers were filed before court. The High Court nevertheless found that the founding affidavit lacked fundamental and material facts, thus it couldn't grant the relief sought.
This raised the question of law whether such an order could be granted on consideration of the appellant’s uncontested founding papers alone, and if it could in law be done, the next, factual, issue is whether the High Court’s assessment of the facts was justified. CoA justices, Singh Walia and Leatile Dambe, concurred with Justice Johan Coenraad Froneman that the High Court was justified in finding that there were no facts supporting BOPEU’s case in the application. The judges found out that there was never any agreement on the new directive about the guidelines. They also found that the alleged agreed and approved new directive was never signed. “Nowhere in the founding papers is there any indication that the first respondent signed the agreement,” reads the judgment in part. The justices further reasoned that the union representative had also expressed reservations with the draft guidelines presented at the meeting and decided to come up with a counter proposal. They were in agreement that the fact that during one meeting, it was agreed "to push as much as possible and a way forward will be agreed upon in the meeting" suggested that there were still disagreements about the guidelines, contrary to the assertion that final agreement had been reached on July 3, 2020.
“The appellant’s endeavours to have the alleged agreement implemented were not met by conduct from the respondent indicating any agreement or willingness to implement the alleged agreement. “Indeed, it appears from a letter of the appellant to the first respondent that the latter had on November 3, 2021, proposed a new draft directive, which the appellant angrily rejected,” the justices further reasoned. The progression scheme for secretaries has been a burning issue since 2015 after the DPSM introduced the CBCP via a Directive No.1 of 2015 and implemented through various directives and circulars to map out a clear career progression structure for the Secretarial and Executive Office Management Cadre. The scheme introduced new academic requirements and competencies for progression and elevation from lower to higher offices. However, the directive was halted after unions and the employer struck a consent settlement before then-High Court judge, Walia. Last year, DPSM director Gaone Macholo sparked fresh fears following the introduction of the CBCP scheme. DPSM unveiled plans to “decide whether candidates possess the qualifications, skills, and competencies stipulated in this Competence-Based Career Path and have demonstrated level of competence”.
